Constitutional legitmacy

BehindTheScenes

Hey all,

I'm doing a class about various constitutions at the moment. We are currently focused on the British constitution. I was wondering does the British constitution which is made by the laws passed in Parliament apply to Scotland (curious as the Scots always seemed to have their own thing on the go and also with devolution)?

Also, given that the powers of Parliament are derived from the people and Mps are elected by the people does the unelected Monarch and House of Lords negate this unwritten constitution?

Thanks

Tom Young

There is no constitution in the UK per se it is what is called a constitutional monarchy. Nowhere is there a written constitution like the Irish one. The queen is the head of state and so on. Most constitutional monarchies employ a parliamentary system in which the monarch is the ceremonial head of state and a directly or indirectly elected prime minister is the head of government and exercises effective political power. In the past, constitutional monarchs have co-existed with fascist and quasi-fascist constitutions.

UK structure: Bicameral Parliament (Commons and Lords)

Constitution: Unwritten/Uncodified; partly statutes, partly common law and practice
Legal system: Based on common law tradition with early Roman and modern continental influences; has nonbinding judicial review of Acts of Parliament under the Human Rights Act of 1998; accepts compulsory ICJ jurisdiction with reservations.

I take it your not giving the class?

dermot_sheehan

BehindTheScenes wrote: »

Hey all,

I'm doing a class about various constitutions at the moment. We are currently focused on the British constitution. I was wondering does the British constitution which is made by the laws passed in Parliament apply to Scotland (curious as the Scots always seemed to have their own thing on the go and also with devolution)?

Also, given that the powers of Parliament are derived from the people and Mps are elected by the people does the unelected Monarch and House of Lords negate this unwritten constitution?

Thanks

The Parliament of the United Kingdom has since the Act of Union 1707 had the power to legislate for Scotland, and constitutional matters are a competence of the United Kingdom parliament under the Scotland Act 1998 so as a matter of law the UK parliament can legislate for scotland.

Remember that most of the uk constitutional order is not underwritten by laws but by political norms, so whether the UK Parliament can politically change the constitution of scotland without its consent is another question.

Regarding the lords and monarchy, they are not generally regarded today as the source of legitamacy for the UK consitutional order although they were in the past. Since however its established by law that the lords can be overriden by the parliament acts, and as a matter of law and political history that it is for parliament to determine the succession of and whether there is a vacancy in the throne (glorious revolution and theact of settlement), any signifigant obstacles created by the lords or monarchy could be overcome by the commons.

brian__foley

The REAL question is whether the 1922 constitution over here owes its legitimacy / authority to England and whether the 1937 document depends on the 1922!

Well...its a real question if you've time on your hands.

B

Tom Young

brian__foley wrote: »

The REAL question is whether the 1922 constitution over here owes its legitimacy / authority to England and whether the 1937 document depends on the 1922!

Well...its a real question if you've time on your hands.

B

Yep - looked at that some time ago. It's something that does require a large amount of time to try and come to terms with.

I think ultimately there is no escape from history over here and that is borne out in the many quirkes that are apparent in the area of Land Law and indeed devises which are now with the state that used to vest in the sovereign. I always found the disjoin between the president of the High Court and the Monarch for certain devises a wonderous transition.

In fact I find the Constitutional approach to the EU in certain instances similarly interesting e.g., encroachment by the EU on national criminal justice matters and the functional shield in Art 29.4 etc.

But there you go.

Tom

brian__foley

Tom Young wrote: »

Yep - looked at that some time ago. It's something that does require a large amount of time to try and come to terms with.

I think ultimately there is no escape from history over here and that is borne out in the many quirkes that are apparent in the area of Land Law and indeed devises which are now with the state that used to vest in the sovereign. I always found the disjoin between the president of the High Court and the Monarch for certain devises a wonderous transition.

In fact I find the Constitutional approach to the EU in certain instances similarly interesting e.g., encroachment by the EU on national criminal justice matters and the functional shield in Art 29.4 etc.

But there you go.

Tom

One word...revolution! (or three, if you're DRP - Revolt or Revolution?)

Tom Young

Two words (and a smilie): King Bertie

Victor

BehindTheScenes wrote: »

Also, given that the powers of Parliament are derived from the people and Mps are elected by the people does the unelected Monarch and House of Lords negate this unwritten constitution?

Parliament is sovereign. The people and monarchy mean relatively little.

brian__foley wrote: »

The REAL question is whether the 1922 constitution over here owes its legitimacy / authority to England

The constitution was drawn up by agreement. Its authority comes from both sides.

and whether the 1937 document depends on the 1922!

No, 1937 amounted to a peaceful and (new) constitutional coup.

BehindTheScenes

Tom Young wrote: »

I take it your not giving the class?

I bet I could take a good stab at giving a class now.

brian__foley wrote: »

The REAL question is whether the 1922 constitution over here owes its legitimacy / authority to England and whether the 1937 document depends on the 1922!
B

Does Saorstát Éireann count as a Constitution? The original from the British is very different to the document it finished as. The people had no say in amending articles whereas they do with Bunreacht na hÉireann. It was imposed by a power whose authority within the state was diminishing.

Cróga

I have a question! A government is made up of actors and words where its power and authority is derived from the people. How then is it possible for a fiction such as a government, with its constitution and its acts and statutes, to have any authority over such people? Is it not true that these documents only apply to people who work for the government as we the people on the land known as ireland are already born with inalienable and invincible rights? For example someone who works in mcdonalds has to obey the charter of the company as part of their contract - they cant go into it drunk but i dont work in mcdonalds so i can go in drunk. What im getting at is, i never signed the constitution so how can it and the acts of parliament apply to me? Is governance mandatory or consensual? I hear a lot about how much we live in a free society....

Notice Article 41.1.1 of the Bunreacht na hEireann

"The State acknowledges that the Family is the basic primary group-unit of/for society according to nature, and that it is a moral institution which has inalienable and invincible rights which are more ancient and higher than any human statute."

(by the way that is from the literal translation.... not from the watered down blue book version u get in the book shops)

Tom Young

Grand. If this goes Brehon law you can move it to some other thread, on someone elses watch, such as History or Philosophy. Just so you all know.


Thanks,

Tom

brian__foley

Croga wrote: »

I have a question! A government is made up of actors and words where its power and authority is derived from the people. How then is it possible for a fiction such as a government, with its constitution and its acts and statutes, to have any authority over such people? Is it not true that these documents only apply to people who work for the government as we the people on the land known as ireland are already born with inalienable and invincible rights? For example someone who works in mcdonalds has to obey the charter of the company as part of their contract - they cant go into it drunk but i dont work in mcdonalds so i can go in drunk. What im getting at is, i never signed the constitution so how can it and the acts of parliament apply to me? Is governance mandatory or consensual? I hear a lot about how much we live in a free society....

Notice Article 41.1.1 of the Bunreacht na hEireann

"The State acknowledges that the Family is the basic primary group-unit of/for society according to nature, and that it is a moral institution which has inalienable and invincible rights which are more ancient and higher than any human statute."

(by the way that is from the literal translation.... not from the watered down blue book version u get in the book shops)

I'm sure someone wonderful has written a book that may help you with these thoughts...probably chapter 9 of it, I'd imagine.